Blue sky steroids.

• Author: Rapp, Geoffrey
• Position: Symposium: Essays on the Intersection of Professional Sports and the Criminal Law

1. INTRODUCTION

   It should come as no surprise that the nation's political establishment in Washington, D.C., turned its attention to the scourge of performance-enhancing substances in professional sports. (1) This allowed politicians on Capitol Hill to take a break (2) from "interminable speeches" (3) to fawn over the likes of Roger Clemens and Rafael Palmeiro, as well as those players' (purportedly) artificially enhanced muscle mass. Even the President of the United States--with the nation in the midst of two conflicts abroad and teetering on the brink of economic disaster--thought the issue so pressing that it merited several minutes of his annual State of the Union address in 2004. (4)

   Something has to be done to stop these athletes, we are told. (5) Baseball's supposed "antitrust exemption" is on the table: if Bud Selig doesn't clean up the so-called national pastime, his league should be subject to federal antitrust law. (6) And criminal laws are coming! (7) Players may go to jail, where Super Bowl rings won't do them much good.

   Amidst all the sound and fury, (8) most policymakers pay only brief attention to the threshold question of why steroids and other performance-enhancing substances are a problem in professional sports. (9) Steroids are bad, it is assumed, and so the only questions worth debating are how to ban them and how to test for them. All the major professional sports leagues have now put in place some type of drug-testing regime through the collective bargaining process. (10)

   Five main arguments underlie policymakers' assumptions and motivate their aggressive approaches to eradicating performance-enhancing substances from professional sports. These arguments, which surface in the literature and occasionally in policy discussions, are thought to justify testing athletes for banned substances and punishing those who fail the tests. First, performance-enhancing substances must be banned in order to "level the playing field." (11) Second, performance-enhancing substances are bad for player health. (12) Third, performance-enhancing substance users are poor role models for children who often idolize professional athletes. (13) Fourth, use of performance-enhancing substances could expose players to influence by gamblers aimed at manipulating on-field competition to produce ill-gotten gains. (14) Finally, fans do not like it when players use performance-enhancing substances, and want a game clean from the taint of steroids and other performance-enhancing substances. (15) However, these rationales are either unconvincing, belied by the leagues' approach to related issues, or they are in pursuit of goals not likely to be achieved by any plausible "test-and-punish" regime.

   In this Essay, I suggest a rethinking of the regulatory approach to performance-enhancing substance use in professional sports. Rather than test and punish through disciplinary sanctions and criminal law, aiming to control the substance of players' substance use, I suggest that performance-enhancing drugs be controlled through an approach modeled after federal and state regulation of the financial aspects of corporate activity.

   The federal government's securities laws--and state "Blue Sky" laws designed in similar fashion--have traditionally shied away from imposing substantive restrictions on corporate activity. Corporations are not told to avoid particular kinds of risky investments, or to allocate assets in certain ways. (16) Instead, the federal and state securities laws call for everything to be out in the open and visible, so that a shareholder can tell that a corporation is selling nothing more than the "Blue Sky." Securities laws allow corporations to do whatever they want with shareholders' money, so long as they disclose what they are doing with it. Substantive decisions are not reviewed and punished when found to be wrong, except in rare instances. Instead, it is the failure to disclose that leads to securities liability.

   The "Blue Sky" approach achieves a level of market stability when substantive governmental intervention would be impossible or ineffective due to limited resources and the complexity of modern business affairs. Our securities regulation regime trusts that, in ordinary times, market forces will discipline corporate managers who waste or misdirect business assets. (17) The disclosure approach minimizes monitoring costs and allows market arbitrage to replace governmental intervention as the source of discipline for corporate leaders.

   A similar approach could do wonders in professional sports. Rather than ban certain substances and test for them (or their masking agents), sports leagues should simply call for all players to disclose all "non-food" substances they put into their bodies. Penalties would exist not for using drugs per se, but only for failing to disclose accurately those substances used.

2. THE FLAWED CASE FOR A "TEST-AND-PUNISH" REGIME

   1. "LEVELING THE PLAYING FIELD"

      The first argument in favor of an aggressive approach to regulating professional athletes' use of steroids and other performance-enhancing substances is also the most vague. This argument is framed in ethical terms. (18) Competition in professional sports "should be honorable," and the use of performance-enhancing substances is "both cheating and a contradiction to the meaning of sport." (19) Testing regimes--accompanied by disciplinary sanctions--are said to be justified because they will help ensure that competition occurs on a level playing field.

      One weakness of the ethical argument against performance-enhancing substances is that it imagines that a level playing field can be achieved if drugs are eradicated. This may be unrealistic. Legal performance-enhancing techniques, like "weight machines, treadmills, better training programs, better diets, better dieting techniques, computer diagnosed training, [and] hyperbaric chambers...." (20) not to mention innate genetic differences in ability, will always produce an "unlevel" playing field in which some athletes have an advantage over others. The challenge for one seeking to justify a drug testing regime lies in "articulating a convincing distinction between these enhancers and steroids." (21)

      Even if they could be justified, testing regimes face a near-fatal impediment to success: the difficulty of defining what is banned. Two approaches to articulating the scope of any substance can be envisioned, and both approaches have significant real-world limitations. First, and most commonly, a testing regime can identify a list of "banned" substances. (22) Alternatively, a testing regime can provide a generic description of a banned substance, for instance, as any substance not available over the counter that gives an athlete an unfair advantage over competitors. (23)

      A testing regime based on a list of banned substances fails to stop athletes from using new drugs that are not on the banned list. (24) In response to this problem, anti-doping authorities have expanded their list of banned substances "to include almost every conceivable performance-enhancing drug." (25) But the science of drug creation will always move faster than the science of drug testing. A drug not "conceived" as performance enhancing might very well prove to be, but it will likely remain absent from the list of banned substances until years after its use permeates professional athletics. Anti-doping authorities tend to feel like "they are always a little bit behind." (26) By the time a test is developed, a new version of the performance-enhancing drug may have been developed that would defeat the test. (27)

      Even where a substance is identified among a list of banned substances, existing technology may not allow accurate detection via non-invasive testing means. (28) Some types of doping, most notably autologous blood doping (in which an athlete receives a transfusion of the athlete's own blood, drawn at an earlier time) are virtually undetectable. (29)

      Another striking example is the use of Human Growth Hormone (HGH). Even as sports leagues started to "get tough" on steroids, athletes turned to the use of HGH, which replicated some of the positive effects of steroids but proved nearly undetectable. (30) This substance naturally occurs in the body, and the only means of detection is through a blood test. (31) However, the test only discovers unusually high levels of the hormone in the body, (32) and can thus fail to detect use by many athletes.

      In addition, athletes have proven adept at manipulating their substance use to avoid testing positive on an announced testing date, either by the timing of substance use or by employing masking agents which frustrate existing testing regimes. (33) For example, an athlete can use a banned substance, but then taper use before testing and avoid a positive result. (34) The sad fact of life in professional sports is that the testing regimes will never catch up to the cheaters. (35) The financial stakes involved for players create powerful incentives for the use of ever more evasive performance-enhancing substances. So long as it remains a "certainty that a large number of cheating athletes will beat the tests," (36) no testing-and-punishment regime will eradicate performance-enhancing substance use.

      A further drawback of a specified list of banned substances is that inclusion of a substance on such a list can, ironically, encourage its use. (37) For instance, even though the scientific evidence on whether HGH is actually a performance enhancer is mixed, inclusion of HGH on doping lists may inadvertently promote its use among athletes. (38)

      A generically described "illicit substance" ban, rather than a ban based on a specific substance list, also fails to solve the problem. Here, the main impediment is the zealous representation provided to professional athletes by their players' unions and associations. (39) Because any testing regime is necessarily a "required" subject...